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Diversicare General Partner10/14/2005
lt, rape, and battery by a hospital intruder did not fall within Louisiana's Medical Malpractice Act); ERIC M. CARLSON, LONG-TERM CAREADVOCACY § 10.09 (2002).
Thus, an allegation that a nursing home failed to protect a patient from assault can sound either in medical malpractice or in ordinary negligence.
A.
To the extent that Ms. Rubio's causes of action depend on an underlying claim of understaffing, I agree that they are governed by the MLIIA. Ms. Rubio's attorneys suggested in the trial court that her claims related to the nursing home's staffing procedures, stating that the "underlying cause" of the assault was that the nursing home was "dangerously understaffed." In this Court, the attorneys emphasized at oral argument that the sexual-assault claim was "inextricably intertwined with what's necessary for an Alzheimer patient-to-staff ratio" and agreed that their legal argument was based on the premise that "there is no medical judgment in determining how much staff is needed for those patients more in need of supervision."
This premise, however, is incorrect; in fact, a nursing home is required by law to use medical judgment in its staffing decisions. 40 TEX. ADMIN. CODE § 19.1001. State regulations require that a nursing home offer "sufficient staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care." Id. The "resident assessment" requires the facility to analyze, among other things, the resident's "physical functioning and structural problems," "psychosocial well-being," and "disease diagnoses and health conditions." Id. § 19.801. The "plan of care" must be prepared by "an interdisciplinary team that includes the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff" and must include "measurable short-term and long-term objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment." Id. § 19.802. Because a nursing home is required to consider the physical and mental-health conditions of each of its residents in determining its staffing needs, these decisions simply cannot be made without employing medical judgment.
B.
Not all of the claims pleaded by Ms. Rubio necessarily related to the allegations of understaffing, however. Instead, her pleading also asserted that the facility failed to use ordinary care to protect her from a known danger; specifically, she pleaded that " efendants were well aware" of the alleged assailant's sexual-assault history and that the facility failed "to take preventive measures to avert any reoccurrence." This allegation, broadly construed, asserts a premises liability claim; it does not necessarily require the exercise of medical judgment, but could instead be read to support a claim that the facility failed to use ordinary care to secure the premises.
Ms. Rubio's premises liability claim is similar to the claims in several other cases decided by our courts of appeals. See Healthcare Ctrs. of Tex., Inc. v. Rigby, 97 S.W.3d 610, 616--17 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778, 780 (Tex. App.-San Antonio 2002, no pet.); Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 670 (Tex. App.-Dallas 2001, no pet.); Sisters of Charity of the Incarnate Word, Houston, Tex. v. Gobert, 992 S.W.2d 25, 27 (Tex. App.-Houston [1st Dist.] 1997, no pet.). The Court today overrules these cases "to the extent they hold that the patients' claims for a
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